Johnson v. Cal-West Construction Co.

SHINN, P.J.

This action was brought by the surviving wife and children of John Johnson for the recovery of damages resulting from the death of Mr. Johnson in a fall from scaffolding. It was alleged that the accident was due to the defective and dangerous condition of the scaffolding. Named as defendants were Carl Cotrell, Daniel Sifling, Grace Smith, Cal-West Construction Company, a partnership, W. J. O’Neal and Louis M. Bailey. Cotrell paid $6,000 for a covenant not to sue. The action was dismissed as to certain defendants and proceeded to trial only against Cal-West, O’Neal and Bailey. Plaintiffs appeal from a judgment on verdict in favor of these defendants.

Error is assigned in the instructions that were given and the claimed refusal to admit in evidence certain safety orders of the Department of Industrial Relations, Division of Industrial Safety, with respect to the construction of the scaffolding.

It was established that O’Neal and Bailey as copartners of Cal-West entered into an agreement to construct an apartment building upon the land of Grace Smith in Covina. The plastering and lathing was sublet by contract to Cotrell, who sublet the lathing to defendant Sifling, who employed Johnson as foreman on the lathing job. Cotrell constructed scaffolding around the building. Johnson, while engaged in lathing, fell from the scaffolding and suffered fatal injuries. It was and is the theory of plaintiffs that the cause of Johnson’s fall was some unsafe condition of the scaffolding.

It was established by uncontradicted evidence that Cal-West did not construct the scaffold or furnish any material for the same, did not retain any control over the scaffolding or over the work done under the subcontract to Cotrell and did not in any particular undertake to direct the manner in which the scaffolding would be constructed or maintained or the lathing

[612]

or plastering would be carried on. The sole interest of Cal-West was to see that the work was done and finished in accordance with its contract with Cotrell.

The court gave the instructions that are set out in the footnote.

1

Those numbered 1 and 3 were given on the court's own motion, No. 2 at the request of defendants. The instructions were correct statements of the law.